Karnataka High Court
The Executive Engineer vs Sri H.T. Annaji on 27 October, 2025
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NC: 2025:KHC:42723
RSA No. 1229 of 2013
C/W RSA No. 1230 of 2013
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1229 OF 2013 (MON)
C/W
REGULAR SECOND APPEAL NO. 1230 OF 2013 (MON)
IN RSA No. 1229/2013
BETWEEN:
1. THE EXECUTIVE ENGINEER
HEMAVATHI RIGHT BANK
HIGH LEVEL CANAL DIVISION
(HRBHLC), GORUR
PIN CODE-573 120.
2. THE CHIEF ENGINEER
HEMAVATHI PROJECT
GORUR, HASSAN DISTRICT
PIN CODE - 573 120.
Digitally ...APPELLANTS
signed by
SUNITHA K S (BY SRI. K.S. BHEEMAIAH, ADVOCATE)
Location:
HIGH COURT AND:
OF
KARNATAKA 1. SRI. H.T. ANNAJI
S/O THIMMEGOWDA
AGED 69 YEARS
CONTRACTOR, SRI DURGA
K.R. PURAM, HASSAN
PIN CODE-573 201.
...RESPONDENT
(BY SRI. S. KRISHNASWAMY, ADVOCATE FOR C/R)
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NC: 2025:KHC:42723
RSA No. 1229 of 2013
C/W RSA No. 1230 of 2013
HC-KAR
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 26.03.2013 PASSED IN
R.A.NO.136/2011 ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT-II, HASSAN, ALLOWING THE APPEAL FILED
AGAINST THE JUDGMENT AND DECREE DATED 02.07.2011
PASSED IN O.S.NO.1/2004 ON THE FILE OF THE ADDL. SENIOR
CIVIL JUDGE, HASSAN.
IN RSA NO. 1230/2013
BETWEEN:
1. THE EXECUTIVE ENGINEER
HEMAVATHI RIGHT BANK
HIGH LEVEL CANAL DIVISION
(HRBHLC), GORUR-573 120.
2. THE CHIEF ENGINEER
HEMAVATHI PROJECT
GORUR, HASSAN DISTRICT-573 120.
...APPELLANTS
(BY SRI. K.S. BHEEMAIAH, ADVOCATE)
AND:
1. SRI H.T. ANNAJI
S/O THIMMEGOWDA
AGED ABOUT 69 YEARS
CLASS-I CONTRACTOR
SRI DURGA, K.R. PURAM
HASSAN-573 201.
...RESPONDENT
(BY SRI. KRISHNA SWAMY, ADVOCATE FOR C/R)
THIS RSA IS FILED U/S. 100 OF CPC., 1908 AGAINST THE
JUDGEMENT AND DECREE DATED 26.03.2013 PASSED IN
R.A.NO. 198/2011 ON THE FILE OF THE PRESIDING OFFICE,
FAST TRACK COURT-II, HASSAN, DISMISSING THE APPEAL
AND FILED AGAINST THE JUDGEMENT AND DECREE DATED
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NC: 2025:KHC:42723
RSA No. 1229 of 2013
C/W RSA No. 1230 of 2013
HC-KAR
02.07.2011 PASSED IN OS.NO.1/2004 ON THE FILE OF THE
ADDL.SENIOR CIVIL JUDGE, HASSAN.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
1. These Regular Second Appeals are arising out of a common judgment and decree dated 26.03.2013 passed in Regular Appeal Nos.136 of 2011 and 198 of 2011 by the learned Presiding officer, Fast Track Court-II, Hassan.
2. For convenience, the parties are referred to based on their rankings before the Trial Court. The appellants were the defendants, and the respondent was the plaintiff.
3. Brief facts, leading rise to the filing of these appeals are as follows:
4. The plaintiff initially filed a suit against the defendants for recovery of a sum of ₹3,00,000/- and subsequently, the plaint was amended from time to -4- NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR time and sought for recovery of a sum of ₹39,82,668/- with a direction to reimburse the Earnest Money Deposit, security deposit, Ramp EMD deposit and illegally recovered amount with interest at the rate of 24% + 2% from 01.03.1990 till the realisation.
5. It is the case of the plaintiff that the plaintiff is a Class I Public Works Department contractor. During the month of October 1987, the defendants invited a tender from the eligible contractors for doing earth excavation work and embankment from chainage 12,000 meters to 12,900 meters of HRBHLC division (Hemavathi Right Bank High Level Canal Division for short 'HRBHLC division') from Hemavathi Project, Gorur, of 13 k.m. (balance work). The tendered cost of work was ₹10,01,260/-. The plaintiff submitted an application. The plaintiff's tender was accepted and an agreement was executed between the plaintiff and the defendants and a work order was issued. During -5- NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR the existence of the contract between the plaintiff and defendants, the defendants have entrusted the additional work of removing debris on both the sides i.e., service road and inspection path sides and to shift the same.
6. As per the instruction of the officers of the defendants department, the plaintiff has completed the tender work to the tune of more than ₹18,00,000/-, as against the work order tendered around ₹10,01,260/-. The plaintiff has discharged the contractual obligation. Thereafter, defendant No.1 let in water into the canal and radically changed the working conditions. The plaintiff being the tender holder carried balance earth work excavation from chainage 12,000 meters to 12,200 meters as per the directions of the officers of the defendants and he shifted excavated stuff and debris from the spoil bank and dumped at Survey Nos.57, 58 and 59 of Kaniyar village. It is contended that the plaintiff has shifted -6- NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR 32,814 cubic meters of debris and 15% of the voids are to be added. Thus, the total quantity of the voids shall be added which amounting to 4,922.1 cubic meters and thus, in all, the total quantities of the debris removed by the plaintiff is 37,736.1 cubic meters. The plaintiff calculated and submitted a bill to the defendants to pay the amount. The defendants did not pay the amount as demanded by the plaintiff. Hence, a cause of action arose for the plaintiff to file a suit for recovery of money.
7. The defendants have filed a written statement admitting that plaintiff is the Class-I PWD Contractor and admitted that the work order was issued to the plaintiff for earth excavation and embankment from 12,000 meters to 12,900 meters. The defendants admitted regarding the execution of agreement between the plaintiff and the defendants on 05.10.1987 and it is denied that the plaintiff was entrusted with the additional work. It is contended -7- NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR that the plaintiff has not completed his work within time and the time was the essence of contract. The plaintiff filed a suit in O.S.No.123 of 2000 and obtained stay and hence, prays to dismiss the suit.
8. The plaintiff filed an application to amend the plaint.
The said application came to be allowed and the plaintiff was permitted to carry out necessary amendment. The plaintiff by amending the plaint has sought for the relief of a recovery of ₹39,82,668/- instead of ₹3,00,000/- and subsequently got amended the plaint for ₹5,20,000/- and again he has filed an application for amendment of the plaint claiming ₹39,82,668/-. Hence, it is contended by the defendants that the claim made by the plaintiff is not maintainable for want of notice under Section 80 of the CPC. Hence, prays to dismiss the suit.
9. The trial Court, based on the pleadings of the parties, framed the following issues and additional issues. -8-
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1) Whether the plaintiff proves that he has completed the tender work to the tune of Rs. 18,00,000/-?
2) Whether the plaintiff further proves that the defendant committed breach of terms and conditions of the agreement?
3) Whether the plaintiff proves that defendants have not settled his claim?
4) Whether the defendant proves that the time is the essence of the contract?
5) Whether the defendant proves that the suit is barred by law of limitation?
6) Whether the plaintiff is entitled for the relief sought for?
7) What order or decree?
Additional Issues:
1. Whether the plaintiff proves that he was entrusted with the additional work for shifting of debris and he carried out the same at the instructions of the defendants?
2. Whether the plaintiff proves that the defendant is liable to pay Rs.39,82,668/-?
10. The plaintiff, to substantiate his case examined himself as PW.1, and marked 28 documents as Ex.P1 -9- NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR to Ex.P28. In rebuttal, the officials of the department was examined as DW.1 and DW.2 and no documents were marked.
11. During the pendency of the suit, an application was filed for the appointment of a court commissioner. The said application came to be allowed and the court commissioner was appointed. The court commissioner submitted a report.
12. The defendants filed the objections to the court commissioner's report. The commissioner was examined as CW.1 and marked three documents as Exs.C1 to C3. The trial court, after recording the evidence, hearing on both sides and after assessing the verbal and documentary evidence, answered issue Nos.1 to 3 and additional issue No.1 in the affirmative, issue Nos. 4 and 5 in the negative, issue No.6 and additional issue No.2 partly in the affirmative, and issue No. 7 as per the final order, and the suit of the plaintiff was partly decreed with
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR costs. It is held and declared that the defendants are jointly and severally liable to pay a sum of ₹5,40,000/- towards the additional work done by the plaintiff and ₹30,038/- towards refund of EMD amount, ₹3,740/- towards refund of ramp., ₹1,12,487/- towards the refund of security deposit and ₹2,736/- towards refund of shrinkage quantity with interest at the rate of 10% per annum from March 1990 till the realisation. The defendants were directed to pay the said amount with interest within 3 months from the date of order. In the event, the amount is not paid by the defendants within 3 months from the date of the order, the defendants shall be liable to pay the interest at the rate of 18% per annum from March 1990 till realisation.
13. The plaintiff as well as the defendants, aggrieved by the judgment and decree passed in O.S.No.1 of 2004, preferred the appeals in R.A.Nos. 136 of 2011 and
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR 198 of 2011 on the file of learned Presiding officer, FTC-II, Hassan.
14. The First appellate court, clubbed the appeals and after hearing the learned counsel for the parties, framed the following common points for consideration:
1) Whether the trial Court has failed to appreciate the oral and documentary evidence in accordance with law on case facts, and the impugned judgment is liable to be set aside?
2) Whether there are any reasons for this Court to interfere with the judgment of the trial Court?
3) What order?
15. The first appellate Court, after re-appreciating the verbal and documentary evidence, answered point No.1 in the affirmative in RA No.136/2011 and as negative in R.A.No.198/2011, point No.2 there are reasons to interfere in both appeals and point No.3 as per the final order. Appeal No.136 of 2011 filed by the plaintiff was allowed and appeal No.198 of 2011
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR filed by the defendants was dismissed and the suit of the plaintiff was decreed. In result, the defendants were held jointly and severally liable to pay the suit claim of ₹39,82,668/- towards the additional work done by the plaintiff, and also the plaintiff is entitled for refund of ₹30,038/- towards the refund of ramp, ₹1,12,487/- towards the refund of security deposit and ₹2,736/- towards the refund of shrinkage quantity with interest @ 10% per annum from March 1990 till the day from the date of judgment within 3 months with cost. In default the defendants are liable to pay interest on the aforesaid amount @ 18% per annum from March 1990 till realisation.
16. The defendants, aggrieved by the common judgment passed in R.A.Nos.136 of 2011 and 198 of 2011 filed these Regular Second Appeals.
17. Heard the learned counsel for the defendants and also the learned counsel for the plaintiff.
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18. Learned counsel for the defendants submits that initially the plaintiff had filed a suit for recovery of money of ₹3,00,000/- and subsequently filed an application for amendment to the plaint, and sought for recovery of ₹5,40,000/- and the said application came to be allowed and the plaintiff carried out amendment to the plaint. He also submits that during the pendency of the suit, the court commissioner was appointed and he has submitted a report. After the receipt of the report, the plaintiff once again filed an application for amendment to the plaint seeking the relief of recovery of money for ₹39,82,668/-. He submits that the claim made by the plaintiff for recovery of ₹39,82,668/- is barred by limitation. He also submits that there is no contract between the plaintiff and the defendants to transport the debris from the spoil bank and, dumped at Survey Nos.57 to 59 of Kaniyar village. He submits that without the contract, the plaintiff has carried out the work. He
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR submits that there is no privity of contract between the plaintiff and the defendants regarding carrying out of the additional work. Hence, the plaintiff is not entitled to the amount of additional work carried out by the plaintiff. He also submits that the suit filed by the plaintiff is barred by limitation. He submits that the plaintiff has carried out amendment seeking the relief of a recovery of ₹39,82,668/- after 4 years from the date of filing the suit. He submits that as of the date of filing of an application for amendment to the plaint, the relief claimed by the plaintiff was barred by limitation. Thus, the said aspect was not properly considered by the first appellate Court, and committed an error in passing the impugned judgment. Hence, on these grounds, he prays to allow the appeals.
19. Per contra, learned counsel for the plaintiff submits that the defendants have invited a tender for earth excavation, and the plaintiff had submitted a tender
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR and he was the lowest bidder and his tender was accepted and subsequently agreement came to be executed between the plaintiff and the defendants. Pursuant to the execution of an agreement between the plaintiff and the defendants, the plaintiff carried out complete work as per the agreement and he also submits that the officials of the defendants orally instructed the plaintiff to carry out additional work, i.e., shifting of debris from the spoil bank to Survey Nos. 57 to 59 of Kaniyar village. The plaintiff has carried out the work instructed by the officers of the defendants. He also submits that though the officers have not given it in writing, but they have orally instructed the plaintiff regarding the additional work and the plaintiff has obeyed the instructions. To buttress his arguments, the counsel for the plaintiff has placed a reliance on Section 9 of the Indian Contract Act, 1872 i.e., the proposal and acceptance of any promise is made in words, the promise is said
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR to be expressed. Thus, insofar as such a proposal or acceptance is made or otherwise than in words, the promise is said to be implied.
20. He also submits that initially the plaintiff has filed a suit for recovery of money of ₹3,00,000/-, subsequently, the plaintiff got amended the plaint and sought for recovery of money of ₹5,40,000/- and during the pendency of the suit a court commissioner was appointed. The court commissioner, after inspection, submitted a report stating that the plaintiff has carried out work worth ₹39,82,668/-. After submitting the report, the plaintiff has filed the application to amend the plaint seeking for the relief of recovery of money for a sum of ₹ 39,82,668/-. He submits that the trial Court while passing the order has not recorded its finding that the amendment shall come into effect from the date of passing the order and there is no such finding recorded by the court while allowing an application for amendment to the
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR pleadings. He submits that once an amendment is incorporated, it relates back to the date of the suit.
21. To buttress his arguments, he has placed a reliance on the judgment of the Hon'ble Apex Court in the case of Sampath Kumar vs. Ayyakannu and another1. He also submits that the court can take a judicial note on subsequent events i.e., the commissioner's report and to buttress his arguments, he has placed reliance on the judgment of the Hon'ble Apex Court in the case of M/s. Bay Berry Apartments Pvt. Ltd. and another vs. Shobha and others2, wherein the Hon'ble Apex Court held that if the cause of action arose during the pendency of the suit and if having regard to the facts and circumstances of the case, the suit, keeping in view of the subsequent event could not have been dismissed on the ground that it was barred under the law of limitation. He also submits that DW.1 and DW.2 have 1 AIR 2002 SC 3369 2 AIR 2007 SC 226
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR admitted during the cross examination regarding the additional work carried out by the plaintiff. When the plaintiff has carried out the additional work, the defendants are liable to pay the amount. He submits that the first appellate court has rightly allowed the appeal filed by the plaintiff and dismissed the appeal filed by the defendants. Hence, on these grounds, prays to dismiss the appeals.
22. This Court, in RSA 1229 of 2013 vide order dated 30.09.2013, this Court admitted the appeal to consider the following substantial question of law.
1) Whether the suit filed by the plaintiff claiming the amount based on additional work done was maintainable, in the absence of any contract?
2) Whether the evidence on record has been appreciated by the trial Court as required under Section 3 of the Evidence Act?
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR
23. In RSA No.1230 of 2013, the appeal was admitted vide order dated 19.11.2019, to consider the following substantial question of law.
"In the absence of any contract in respect of payment of interest , whether the courts below were justified in granting 10% of interest on the decretal amount and further directing the defendants to pay 18% interest per annum, failing to pay the decretal amount, within a period of 3 months?"
Reg. substantial questions of law in RSA No.1229/2013:
24. The substantial questions of law are interlinked and they are taken together for common discussion to avoid the repetition of facts.
25. It is the case of the plaintiff that the defendants have invited a tender for the work of earth excavation and embankment for drainage 12,000 metres to 12,900 metres of HRBHLC division, Hemavathi Project, Gorur of 13 k.m. (balance work). Cost of the work was estimated at ₹10,01,260/- and the plaintiff has
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR applied and he was the lowest bidder and the tender of the plaintiff was accepted by the defendants. Thereafter, an agreement came to be executed between the plaintiff and the defendants and the work order was issued in favour of the plaintiff by the defendants. The plaintiff has carried out the work. Subsequently, there was an oral contract between the plaintiff and the defendants, where, the officials of the defendants orally instructed the plaintiff to carry out the additional work i.e. shifting of the debris from the spoil bank to the survey Nos. 57 to 59 of Kaniyar village. The plaintiff obeyed the instructions of the officials of the defendants, and shifted the debris. The total quantities of the debris removed by the plaintiff was 37,736.1 cubic meters and the hire charges per cubic meter would be 105.54 and the calculation to this effect was submitted by the plaintiff. The defendants are liable to pay a sum of ₹39,82,668/-. The plaintiff demanded the payment of
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR additional work undertaken by him, but the defendants refused to pay the said amount and also refused to return the EMD amount etc. The plaintiff aggrieved by the inaction on the part of the defendants, in not paying for the additional work carried out by the plaintiff, filed a suit for recovery of money before the trial Court.
26. The plaintiff, to substantiate his case examined himself as PW.1, and he reiterated the plaint averments in the examination-in-chief and to prove his case he has produced the documents. Ex.P1 is the work order, which discloses that the work order was issued to the plaintiff and directed the plaintiff to complete the work within the stipulated period. Ex.P2 is the copy of the communication which discloses that the Chief Engineer has addressed a letter to the Superintendent Engineer, Hemavathi Project Circle, Gorur, stating under the circumstances explained by the Executive Engineer-1, in his letter dated
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR 18.12.1987, technical approval is hereby accorded to the case from chainage 12,000 metres to 12,200 metres of HRBHLC and this widening work may be done through the present tender agency at the terms and conditions of the contract and it is advantageous to the government as the tender percentage is 1.327% below. Ex.P3 is the communication dated 30.11.1989, which discloses that approval was accorded for shifting of soil bank on IP side and SR side as suggested by the Executive Engineer from 12,000 metres to 12,200 metres of Hemavathi river Bank canal and absolutely required and got done through the tenderer contract from whose tender percentage is less and which is beneficial for the government. Ex.P4 is the communication dated 30.11.1989, which discloses that the approximate cost reported is ₹64,000/-. Ex.P5 is the inspection report submitted by the Executive Engineer of defendant. Ex.P6 is the notice dated 20.06.1991
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR issued by the Executive Engineer to the plaintiff. Ex. P7 is the reminder dated 11.01.1993. Ex.P8 is the letter dated 03.06.1992. Ex.P9 is the letter dated 13.01.1994. Ex.P10 is the letter dated 22.04.2000. Ex.P10(a) is the postal acknowledgment, Ex.P10(b) is the postal receipt. Ex.P11 is the letter dated 18.01.1993. Ex.P11(a) is the postal acknowledgment. Ex.P12 is the letter dated 23.10.1990. Ex.P13 to P24 are the letters. Ex.P25 is the office copy of the notice dated 22.09.2003. Ex.P26 is the letter dated 30.10.2007, and Ex.P27 is the statement regarding the quantity of the work done by the contractor. Ex.P28 is the statement of calculation.
27. During the cross-examination, it is suggested to PW.1 that the officials of the defendants are not authorized the plaintiff to shift the debris from chainage 12,000 meters to 12,200 meters to Survey Nos. 57 to No. 59 of Kaniyar village. The plaintiff is not entitled to claim the said amount. The said suggestion was denied by
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR PW1. In rebuttal, the defendants examined its officer as DW1, who has reiterated the written statement averments in the examination-in-chief. During the cross-examination, he admitted the estimate of the work entrusted was approved by the Chief Engineer in Hemavathi project and the said approval is in respect of 1.1 slope, SR side (service road) and IP side (inspection path) and he also stated that the plaintiff was tender holder and carried on the work of balance earth excavation and arising of bank chainage from 12,000 metres to 12,900 metres with an estimate of ₹10.55 lakhs in Exhibit C2.
28. He also admitted that under Ex.P3, the plaintiff was directed to shift the excavation stuff from SR and IP site to elsewhere and the total work carried out from the chainage 12,000 meters to 12,200 meters is 49,933.27 cubic meters and the said work was done by the plaintiff and one Thimmaiha only. DW.1 has clearly admitted regarding the additional work carried
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR out by the plaintiff. In view of the admission of DW.1 regarding the additional work carried out by the plaintiff, the admission of fact admitted need not be proved as per Section 58 of the Indian Evidence Act, 1872. Further, to consider the case on hand, it is necessary to examine Section 9 of the Indian Contract Act, 1872, which reads as follows:
"9. Promises, express and implied.--In so far as the proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied."
29. Hence, the contract can be implied and it is very clear from Section 9 of the Indian Contract Act, 1872. The contract implied in fact requires meeting of minds. In view of the clear admission of DW.1 that the plaintiff has carried out the additional work, the plaintiff is entitled for the amount claimed by him.
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30. During the pendency of the suit, the court commissioner was appointed and the court commissioner, after visiting the spot, has submitted a report. The defendants also examined one D. Manjunath as DW.2, who was the Executive Engineer. He has deposed that he has succeeded DW.1 and assumed the charge of Executive Engineer on 20.11.2008. In the cross-examination, he admitted that recently he joined the office about 1 month back, and also visited the place of work and verified the work done there and he admitted that he has not stated this fact in his examination-in-chief and he admitted that he do not have a personal knowledge about the facts of the case. He is deposing based on the official records. He admits that the inspection report as per Ex.P5 is prepared by one Ningaiah, the then Executive Engineer, and he had gone through the contents of Ex.P5. He also admits Ex.P5, the plaintiff has carried out the work as per the
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR instruction of the defendants and also admitted that as per Ex.P5, the excavated earth was shifted to survey Nos. 57 to 59 of Kaniyar village.
31. During the pendency of suit, a court commissioner was appointed and the court commissioner has submitted a report. The defendants have filed objections to the commissioner's report and the commissioner was examined as CW.1. He has deposed that he has retired in 1980 as a Chief Engineer and after receiving the commissioner's warrant from the court, he issued a notice to both sides and visited the site work and conducted necessary investigation and obtained the statements of the parties and prepared the report marked as Ex. C1 and Ex.C2 is the book produced by the defendants and the documents produced by the plaintiff is marked as Ex.C3.
32. During the cross-examination, he has stated that he was appointed as the court commissioner for the
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR purpose of inspecting the work carried out by the plaintiff from chainage 12,000 metres to 12,900 metres and the plaintiff had carried out the said work as a contractor on the tender basis and he verified the agreement entered into between the plaintiff and the defendants regarding the said work and also admitted that the plaintiff had carried out certain additional work in addition to the tender and the amount paid by the defendants is of ₹18,00,000/- towards the regular tender work carried out by the plaintiff and the additional work carried out by the plaintiff includes conveyance of excavated materials from the work site to the location about 1 k.m. away. He denied that the additional work would be carried out only on the basis of fresh agreement between the parties.
33. He has stated that the additional work can be carried out even on the basis of oral instructions by the defendants. After submitting the report by the court
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR commissioner, the plaintiff filed an application for amendment to the plaint seeking recovery of amount of ₹ 39,82,668/-. The said application was allowed by the trial Court. The defendants did not challenge the order passed on the application for amendment to the plaint.
34. From the perusal of the entire records produced by both parties, there is no dispute that the defendants have invited a tender for earth excavation and embankment. An agreement was executed between the plaintiff and the defendants, as per the agreement the plaintiff had executed the work. Further, the officials of the defendants have orally instructed the plaintiff to carry out the additional work of transporting the debris from the spot i.e., spoil bank to survey Nos. 57 to 59 of Kaniyar village. Accordingly, the plaintiff has transported the debris from the site to Survey Nos.57 to 59 of Kaniyar village and the said fact was also admitted by DW1
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR and DW2. The plaintiff has produced Ex.P5, which discloses that the plaintiff, on the instructions of the officials of the defendants, carried out the additional work. Now, the defendants have refused to pay the amount on the additional work carried out by the plaintiff on the ground that there is no privity of contract between the plaintiff and the defendants.
35. As observed above, Section 9 of the Indian Contract Act, 1872, there is an implied contract between the plaintiff and the defendants and the work has been carried out as per the said implied contract. Now, the defendants cannot take a u-turn and contend that there was no contract between the plaintiff and the defendants for the additional work carried out by the plaintiff.
36. The learned counsel for the defendants submits that the suit filed by the plaintiff is barred by limitation on the ground that the plaintiff has sought recovery of
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR ₹ 39,82,668/- after 4 years from the date of filing of the suit.
37. I have perused the order passed by the trial Court and the applications for the amendment to the plaint. The trial Court has not recorded its finding that the amendment shall come into effect from the date of passing of an order. In the absence of the finding by the trial Court, while allowing an application for the amendments to the plaint, the principles of relation back came into picture. Based on the order passed by the trial Court, the plaintiff has carried out a necessary amendment in the plaint. "An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleading is not one of the universal application and in the appropriate cases, the court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR permitted by it shall be deemed to have been brought before the court on the date on which an application, seeking amendment, was filed". The said view is supported by the judgment of the Hon'ble Apex Court in the case of Sampath kumar vs. Ayyakannu and another (referred to supra).
38. As observed above, the trial court has not recorded a finding that the amendment shall be deemed to have been brought before the court on the date on which an application, seeking amendment to the plaint, was filed. The argument addressed by the defendants that the amendment shall come into effect from the date of filing an application does not hold water. Further, the learned counsel for the defendants submitted that the said application was filed by the plaintiff only when the court commissioner has submitted a report, after the inspection. He submits that the said report cannot be considered for amendment to the plaint, seeking the relief of recovery of ₹39,82,688/-. The
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR court commissioner was appointed during the pendency of the suit and the said report came to be filed during the pendency of the suit.
39. The Hon'ble Apex Court in the case of M/s. Bay Berry Apartments Pvt. Ltd. and another vs. Shobha and others reported in AIR 2007 SC 226 held as under:
"If the cause of action arose during the pendency of the suit, and if having regard to the facts and circumstances of the case, the suit keeping in view of the subsequent event could not have been dismissed on the ground that it was barred under the law of limitation, we are of the opinion that it would not be proper for us to interfere with the impugned judgment."
40. The first appellate court considering the commissioner report has rightly recorded its finding that the plaintiff is entitled for recovery of amount of ₹39,82,668/-. The first appellate court has rightly re-appreciated the entire evidence on record and has passed the
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR impugned judgment. The suit filed by the plaintiff is well within time. The first appellate court has rightly entertained the suit, by recording that the suit is filed well within time. I do not find any grounds to interfere with the impugned judgments. In view of the above discussion, I answer substantial questions of law No.1 and 2 in the affirmative in RSA No. 1229 of 2013.
Reg. Substantial Question of Law framed in RSA No.1230 of 2013:
" In the absence of any contract in respect of payment of interest, whether the courts below are justified in granting 10% of interest on the decretal amount and further directing the defendants to pay 18% interest per annum, failing to pay decretal amount, within a period of three months?
41. There is no privity of contract between the plaintiff and the defendant regarding the payment of interest on the said amount. To consider the case on hand, it
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR is necessary to examine Section 4 of the Interest Act, 1978, which reads as follows:
"4. Interest payable under certain enactments. (1) Notwithstanding anything contained in Section 3, interest shall be payable in all cases in which it is payable by virtue of any enactment or other rule of law or usage having the force of law.
(2) Notwithstanding as aforesaid, and without prejudice to the generality of the provisions of subsection (1), the Court shall, in each of the following cases, allow interest from the date specified below to the date of institution of the proceedings at such rate as the Court may consider reasonable, unless the Court is satisfied that there are special reasons why interest should not be allowed, namely:-
(a) where money or other property has been deposited as security for the performance of an obligation imposed by law or contract, from the date of the deposit;
(b) where the obligation to pay money or restore any property arises by virtue of a fiduciary
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR relationship, from the date of the cause of action;
(c) where money or other property is obtained or retained by fraud, from the date of the cause of action;
(d) where the claim is for dower or maintenance, from the date of the cause of action."
42. Section 4 of the Interest Act provides that notwithstanding anything contained in Section 3, the interest shall be payable in all the cases, in which it is payable by virtue of an enactment or other rule of law or usage having the force of law.
43. As Section 4 of the Interest Act provides that the interest shall be payable in all the cases, the Trial Court was justified in awarding the interest. However, it has awarded an interest at the rate of 10%, which is on a higher side. This Court is of the opinion that the plaintiff is entitled for the interest at the rate of 8% per annum.
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NC: 2025:KHC:42723 RSA No. 1229 of 2013 C/W RSA No. 1230 of 2013 HC-KAR
44. In view of the above discussion, the substantial question is answered partly in the affirmative and partly in the negative.
45. In the result, I proceed to pass the following order:
ORDER (I) The appeal in RSA No.1229 of 2013 is dismissed;
(II) The appeal in RSA No.1230 of 2030 is allowed in part;
(III) The impugned judgment and decree passed by the First Appellate Court insofar as awarding interest is modified, and the interest awarded by the First Appellate Court at 10% is reduced to 8% per annum from March-
1990 till the realisation of the amount; (IV) Rest of the judgment and decree passed in the first appeal is maintained;
(V) No order as to the costs;
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NC: 2025:KHC:42723
RSA No. 1229 of 2013
C/W RSA No. 1230 of 2013
HC-KAR
(VI) The Office is directed to transmit the
amount in deposit, if any, to the Trial Court forthwith.
(VII) The pending IA's, if any, stand disposed of accordingly.
Sd/-
(ASHOK S.KINAGI) JUDGE SKS/RK List No.: 2 Sl No.: 3